December 1, 2016

    One of the most frustrating events in the life of an appellate attorney occurs when a colleague asks us to appeal from an adverse judgment and our examination of the record reveals what would have been an excellent issue for review but our colleague did not object to the trial judge’s ruling. When we ask, “Why didn’t you object?” we usually hear one of two answers: “I didn’t think of it” (an understandable mistake) or “The judge would not have agreed with me” (an inexcusable mistake). 

    An appeal is like a rocket ship: once you blast off it is too late to remember you forgot to pack a toothbrush. It makes no sense to argue to an appellate court that the trial judge made an error if you never brought the error to the trial judge’s attention so it could be corrected. There are exceptions to this principle, but the basic rule is: If you did not make a point in the trial court, it is waived on appeal. The job of a lawyer in a trial court is not only to convince the trial judge, but to preserve all issues for an eventual appeal regardless of whether the trial judge is likely to agree with your position.




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